Exhibit 10.2


 


AMENDMENT NUMBER FOUR

TO CREDIT AGREEMENT


 


This AMENDMENT
NUMBER FOUR TO CREDIT AGREEMENT (this
“Amendment”) is entered into as of August 13, 2008, by the lenders
identified on the signature pages hereof (the “Lenders”), WELLS FARGO FOOTHILL,
INC., a California corporation (“Agent”; and together with
the Lenders, the “Lender Group”), as the arranger and administrative
agent for the Lenders, and 155 EAST TROPICANA, LLC,
a Nevada limited liability company (“Parent”) and each of Parent’s
Subsidiaries identified on the signature pages hereof (such Subsidiaries,
together with Parent, are referred to hereinafter each individually as “Borrower”,
and individually and collectively, jointly and severally, as the “Borrowers”),
with reference to the following:


 


WHEREAS, Borrowers and the
Lender Group are parties to that certain Credit Agreement, dated as of March 29,
2005, as amended by that certain Amendment Number One to Credit Agreement,
dated as of January 30, 2006, as further amended by that certain Amendment
Number Two to Credit Agreement dated as of June 2, 2006 and as further
amended by that certain Amendment Number Three to Credit Agreement dated as of December 15,
2006 (as amended, restated, supplemented, or otherwise modified from time to
time, the “Credit Agreement”);


 


WHEREAS, Borrowers have
requested that the Lender Group make certain amendments to the Credit
Agreement; and


 


WHEREAS, subject to the terms
and conditions set forth herein, the Lender Group is willing to make the
amendments requested by Borrowers.


 


NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants herein contained, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:


 


1.     Defined
Terms.  Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to them in
the Credit Agreement, as amended hereby.


 


2.     Amendments
to Credit Agreement.


 


(a)           Section 3.4
of the Credit Agreement is hereby amended and restated in its entirety as
follows:


 


“3.4        Term.  This Agreement shall continue in full force
and effect for a term ending on September 30, 2011 (the “Maturity Date”).  The foregoing notwithstanding, the Lender
Group, upon the election of the Required Lenders, shall have the right to
terminate its obligations under this


 

















 


Agreement immediately and without notice upon
the occurrence and during the continuation of an Event of Default.”


 


3.     Conditions
Precedent to Amendment.  The satisfaction of each of the following
shall constitute conditions precedent to the effectiveness of this
Amendment and each and every provision hereof:


 


(a)           Agent shall have received this
Amendment and that certain First Amendment to the Fee Letter, duly executed by
the parties hereto, and the same shall be in full force and effect.


 


(b)           Agent shall have received an
amendment fee in the amount of $150,000, which amount Borrowers authorize
Agent, for the benefit of the Lenders, to charge to the Loan Account.  Such fee shall be fully earned
and paid in full in immediately available funds on or before the date hereof.


 


(c)           The representations and warranties
herein and in the Credit Agreement and the other Loan Documents shall be true
and correct in all material respects on and as of the date hereof, as though
made on such date (except to the extent that such representations and
warranties relate solely to an earlier date).


 


(d)           No Default or Event of Default shall
have occurred and be continuing on the date hereof, nor shall result from the
consummation of the transactions contemplated herein.


 


(e)           No Material Adverse Change
shall have occurred, nor shall result from the consummation of the transactions
contemplated herein.


 


(f)            No injunction, writ, restraining
order, or other order of any nature prohibiting, directly or indirectly, the
consummation of the transactions contemplated herein shall have been issued and
remain in force by any Governmental Authority against any Borrower, any
Guarantor, Agent, or any Lender.


 


4.     Representations
and Warranties.  Each Borrower
represents and warrants to the Lender Group as follows:


 


(a)           It is duly organized and existing and
in good standing under the laws of the jurisdiction of its organization and is
qualified to do business in any state where the failure to be so qualified
reasonably could be expected to result in a Material Adverse Change.


 


(b)           The execution, delivery, and
performance of this Amendment and of the Credit Agreement, as amended hereby, (i) are
within its powers, (ii) have been duly authorized by all necessary action,
and (iii) are not in contravention of any law, rule, or regulation
applicable to it, or any order, judgment, decree, writ, injunction, or award of
any arbitrator, court, or Governmental Authority, or of the terms of its
Governing Documents, or of any contract or undertaking to which it is a party
or by which any of its properties may be bound or affected.


 


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(c)           This Amendment and the Credit
Agreement, as amended hereby, are legal, valid and binding obligations of such
Borrower, enforceable against such Borrower in accordance with their respective
terms.


 


(d)           No Default or Event of Default has
occurred and is continuing on the date hereof or as of the date upon which the
conditions precedent set forth herein are satisfied.


 


5.     Release
by Borrower.


 


(a)           Effective on the date hereof, each
Borrower, for itself and on behalf of its respective successors, assigns, and
officers, directors, employees, agents and attorneys, and any Person acting for
or on behalf of, or claiming through it, hereby waives, releases, remises and
forever discharges Agent and each Lender, each of their respective Affiliates,
and each of their respective successors in title, past, present and future
officers, directors, employees, limited partners, general partners, investors,
attorneys, assigns, subsidiaries, shareholders, trustees, agents and other
professionals (each a “Releasee” and collectively, the “Releasees”),
from any and all past, present and future claims, suits, liens, lawsuits,
adverse consequences, amounts paid in settlement, debts, deficiencies,
diminution in value, disbursements, demands, obligations, liabilities, causes
of action, damages, losses, costs and expenses of any kind or character,  whether based in equity, law, contract, tort,
implied or express warranty, strict liability, criminal or civil statute or
common law (each a “Claim” and collectively, the “Claims”),
whether known or unknown, fixed or contingent, direct, indirect, or derivative,
asserted or unasserted, matured or unmatured, foreseen or unforeseen, past or
present, liquidated or unliquidated, suspected or unsuspected, which such
Borrower ever had, now has, or might hereafter have against any such Releasee
which relates, directly or indirectly to the Credit Agreement, any other Loan
Document, or to any acts or omissions of any such Releasee with respect to the
Credit Agreement or any other Loan Document, or to the lender-borrower
relationship evidenced by the Loan Documents, except for the duties and
obligations set forth in the Loan Documents. 
As to each and every Claim released hereunder, each Borrower hereby
represents that it has received the advice of legal counsel with regard to the
releases contained herein, and having been so advised, specifically waives the
benefit of the provisions of Section 1542 of the Civil Code of California
which provides as follows:


 


“A GENERAL RELEASE DOES
NOT EXTEND TO CLAIMS WHICH A CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM, MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”


 


As to each and every
Claim released hereunder, each Borrower also waives the benefit of each other
similar provision of applicable federal or state law (including without
limitation the laws of the state of New York), if any, pertaining to general
releases after having been advised by its legal counsel with respect thereto.


 


Each Borrower
acknowledges that it may hereafter discover facts different from or in addition
to those now known or believed to be true with respect to such Claims and
agrees that this instrument shall be and remain effective in all respects
notwithstanding any such


 


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differences or additional
facts.  Each Borrower understands,
acknowledges and agrees that the release set forth above may be pleaded as a
full and complete defense and may be used as a basis for an injunction against
any action, suit or other proceeding which may be instituted, prosecuted or
attempted in breach of the provisions of such release.


 


(b)           Each Borrower, for itself and on
behalf of its respective successors, assigns, and officers, directors,
employees, agents and attorneys, and any Person acting for or on behalf of, or
claiming through it, hereby absolutely, unconditionally and irrevocably,
covenants and agrees with and in favor of each Releasee above that it will not
sue (at law, in equity, in any regulatory proceeding or otherwise) any Releasee
on the basis of any claim released, remised and discharged by such Person
pursuant to the above release.  Each
Borrower further agrees that it shall not dispute the validity or
enforceability of the Credit Agreement or any of the other Loan Documents or
any of its obligations thereunder, or the validity, priority, enforceability or
the extent of Agent’s Lien on any item of Collateral under the Credit Agreement
or the other Loan Documents.  If any
Borrower or any of its respective successors, assigns, or officers, directors,
employees, agents or attorneys, or any Person acting for or on behalf of, or
claiming through it violate the foregoing covenant, such Person, for itself and
its successors, assigns and legal representatives, agrees to pay, in addition
to such other damages as any Releasee may sustain as a result of such
violation, all attorneys’ fees and costs incurred by such Releasee as a result
of such violation.


 


6.     Choice
of Law.  The validity of this
Amendment, its construction, interpretation and enforcement, the rights of the
parties hereunder, shall be determined under, governed by, and construed in
accordance with the laws of the State of New York.


 


7.     Counterpart
Execution.  This Amendment may be
executed in any number of counterparts, all of which when taken together shall
constitute one and the same instrument, and any of the parties hereto may
execute this Amendment by signing any such counterpart.  Delivery of an executed counterpart of this
Amendment by telefacsimile or other electronic method shall be equally as
effective as delivery of an original executed counterpart of this
Amendment.  Any party delivering an
executed counterpart of this Amendment by telefacsimile or other electronic
method also shall deliver an original executed counterpart of this Amendment,
but the failure to deliver an original executed counterpart shall not affect
the validity, enforceability, and binding effect of this Amendment.


 


8.     Effect
on Loan Documents.


 


(a)           The Credit Agreement, as amended
hereby, and each of the other Loan Documents shall be and remain in full force
and effect in accordance with their respective terms and hereby are ratified
and confirmed in all respects.  The
execution, delivery, and performance of this Amendment shall not operate, except
as expressly set forth herein, as a modification or waiver of any right, power,
or remedy of Agent or any Lender under the Credit Agreement or any other Loan
Document.  The waivers, consents, and
modifications herein are limited to the specifics hereof, shall not apply with
respect to any facts or occurrences other than those on which the same are
based, shall not excuse future non-compliance with the Loan Documents, and
shall not operate as a consent to any further or other matter under the Loan Documents.


 


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(b)           Upon and after the effectiveness of
this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”,
“herein”, “hereof” or words of like import referring to the Credit Agreement,
and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”,
“therein”, “thereof” or words of like import referring to the Credit Agreement,
shall mean and be a reference to the Credit Agreement as modified and amended hereby.


 


(c)           To the extent that any terms and
conditions in any of the Loan Documents shall contradict or be in conflict with
any terms or conditions of the Credit Agreement, after giving effect to this
Amendment, such terms and conditions are hereby deemed modified or amended
accordingly to reflect the terms and conditions of the Credit Agreement as
modified or amended hereby.


 


(d)           This Amendment is a Loan Document.


 


9.     Entire
Agreement.  This Amendment embodies
the entire understanding and agreement between the parties hereto with respect
to the subject matter hereof and supersedes any and all prior or
contemporaneous agreements or understandings with respect to the subject matter
hereof, whether express or implied, oral or written.


 


10.   Expenses.  Borrowers agree to reimburse the Lender Group
for the Lender Group Expense incurred in connection with this Amendment,
including the reasonable legal fees and disbursements of Paul, Hastings,
Janofsky & Walker LLP, as counsel for the Agent.


 


[signature page follows]


 


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IN WITNESS WHEREOF, the parties have entered into this
Amendment as of the date first above written.


 


 


	
   

  	
  155
  EAST TROPICANA, LLC,

  a Nevada limited liability company, as a

  Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Deborah J. Pierce

  
	
   

  	
  Title:

  	
  Deborah J. Pierce, Chief Financial

  Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  155
  EAST TROPICANA FINANCE CORP.

  a Nevada
  corporation, as a Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Deborah J. Pierce

  
	
   

  	
  Title:

  	
  Deborah
  J. Pierce, Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  WELLS
  FARGO FOOTHILL, INC.,

  a California corporation, as Agent and as a

  Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Steven S. Scott

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


AMENDMENT NUMBER FOUR TO CREDIT AGREEMENT